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Driving Liberty in the Traffic of Tolerance

Reprinted from Law & Liberty

The wonderful essay by Doug Rasmussen and Doug Den Uyl points to liberty as the supreme value, and there is a good case to be made for that. My response is that in comparing tolerance and liberty, the two authors could apply their own distinction between the political and the ethical to sort out the difference between liberty as an ethical virtue and tolerance as a political principle.

Tolerance is a political principle because it is entirely dependent on the institutional rules that make up a governance organization. While there are corollaries in ethical life, famously Robert Frost’s line “Good fences make good neighbors,” the definition of tolerance relates to political principles describing how institutional rules provide for justice from a procedural perspective.

When we design traffic rules, we take for granted that vehicles are less than six feet wide, and we make the lanes as wide as twelve feet to allow for a smooth flow of traffic. This notion of tolerance implies that by providing an additional six feet of wasted lane, we have enough room to do our own thing. The actions of others are only rarely going to be noticed, and when they are noticed, it is because someone is in our lane. We seldom go so far as to trade paint with cars when we become enraged that our boundaries have been crossed. When we honk, it is thankfully rare.

Tolerance is political because it comes from the institutional rules that help create boundaries between individuals and groups. All rules have a formal and an informal aspect, but tolerance only has a meaning in the formal rules. When I have visited Peru and China, I noticed that western conventions guided the painting of the roads with lanes (10-12 feet wide plus shoulder), but that the informal norm was to only use these lines for a third lane that was created by cars that were generally smaller than six feet, fitting three-wide in what appeared to only me as two lanes.

Informal norms can weaken the formal rules of tolerance. Context matters for the use of formal rules in different places, and experience alerts us to this fact. What appeared to me to be the only way to live in the US, one car each in two lanes, was clearly not the convention elsewhere.

Enforcement matters for tolerance. The US police officer that enforces traffic rules is empowered to stop cars when there are lane infractions. Our US notion of enforcement doesn’t fit many other cultural settings (at least at the margin). In these cultures, your own liberty is either defended with a horn and constant vigilance or by trading paint with those that try to inch past you in traffic. In the US, our own enforcement of norms might be verbal and with sign language, but those are more lightly used methods generally.

US traffic rules exhibit a good example of the idea of tolerance. We provide sufficient space for traffic such that a great majority of the time we can ignore other cars in lanes beside us. Tolerance in traffic means we are focused on our destination more than how others are behaving, assuming that tolerance is maintained. That is not possible in either Peru or China. If other drivers are moving in and out of traffic without regard for the lanes, blowing horns, and trading paint, we are more focused on positioning ourselves relative to others than on our destination. Systems that encourage people to advance their own interests at the expense of others are missing a sphere of tolerance.

Political institutions provide rules. Ethical virtues like liberty emerge in context. Everyone exercises within the liberty they get in each case. In all of my anecdotes, liberty is present in some sense, even if there is no formally recognized and enforced standard in each of them. The institutional rules cannot guarantee liberty, because it requires individual exercise. Liberty’s presence cannot be measured and identified due to its incommensurability between persons.

But it is because liberty is of great importance that it is our focus to set up institutions that create the conditions necessary for liberty to flourish. We remain agnostic to the what of liberty which informs the ethical claims. It is not possible to make someone seek liberty, but tolerance provides a set of political institutions that make it possible for that liberty to thrive. It is because the individual will define liberty in their own terms that makes it an ethical value.

When politics is expanded to include ethics it becomes picking winners from among those groups vying for rents. This eliminates the role of providing formal rules for procedure and becomes arbitrating between prescriptions for ethical living. When the sphere of government extends beyond what Adam Smith would call the grammar of justice, the what of the ethical becomes salient for every member of society, especially underrepresented groups. Citizens caught between contested ethical claims must position themselves to win the way that some drivers use horns and trade paint. A proper set of political institutions frees us from vying for rent.

According to Rasmussen and Den Uyl: “Liberty is found when the natural rights of individuals are protected by positive law, which in turn protects the possibility of self-direction and thus the possibility of individual moral responsibility and pursuit of human good among others.”

Both Rasmussen and Den Uyl rely on a foundational concept of natural rights to ground liberty. My own concept admittedly leaves how one expresses and quantifies the presence of liberty to every individual because I believe the disagreements over content matter.

My interlocutors define tolerance as containing a permissiveness for anything, including intolerance. It is true that an incorrect application of a principle would be a problem. What is not as easy to manipulate opportunistically, however, are clear procedural rules that are reinforced in practice and applicable to all in the same way. This is Smith’s concept of justice, and James Buchanan’s veil of uncertainty.

Liberty, pardon the analogy, is the ability to stay in my lane without having to worry about others as obstacles to my progress. Tolerance comes from the complex mix of political institutions that result in a rule of law, like traffic lanes, that ensure liberty is shared by all. To say that tolerance runs the risk of tolerating intolerance is to define away the problem. Tolerance is, after all, a feature of a political system that gives each person their lane. To say that people encroach on my lane is to say that tolerance has not been achieved. It is unnecessary to have a conversation about whose destination is preferred to understand traffic rules. Better rules, changes in norms, or better enforcement are what is needed to improve the institutions of tolerance so that limits apply reciprocally.

Liberty is supreme because it is ethical, but that makes it a poor political principle. We remain ignorant of the destinations of other drivers without compromising the traffic flow. A focus on liberty alone, however, deemphasizes the purpose of political institutions to sort out reciprocal claims. Procedural rules like Adam Smith’s comparison to grammar are needed to check everyone’s opportunism.